Elderly man with a Poor Memory

By Brent E. Zepke, Esq.

Report on Biden’s Classified Afghanistan Documents

Special Counsel Robert K. Hur’s Report on his investigation of Joseph R. Biden’s handling of classified documents was so long – 345 pages plus 48 pages of appendixes –that even summarizing it requires multiple articles. 

My first article was “How Old is Too Old? (SBCurrent, March 6, 2024).

In writing this, the second article, I was struck by the repeated methodology of the Special Counsel shifting from establishing that Mr. Biden was guilty of aspects of mishandling classified documents, to discussing the details, before concluding with:

“We have considered that at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.” (Italics are used to emphasize the use of specific words and phrases, and all quotations are from the Hur Report).  

Mr. Biden’s history

In his Executive Summary, Mr. Hur writes “The classified documents and other materials recovered in this case spanned Mr. Biden’s career in national public life. Mr. Biden has long seen himself as an historic figure. Elected to the senate at age twenty-nine… he collected papers and artifacts related to significant issues and events in his career.” 

Mr. Biden’s “career in national life” began with his election to the senate in 1972 where he had served for 37 years, including as Head of the Foreign Services Committee, before becoming vice president in 2009. By 2024, apart from 2017-21, he had been in a national office for 52 years.

The “Marked classified documents about Afghanistan” section included the following:

“In 2009, the then Vice-President Biden strongly opposed the military plans to send more troops to Afghanistan. He retained materials documenting his opposition to the troop surge, including a classified handwritten memo that he sent to President Obama over the 2009 Thanksgiving holiday, and related marked “classified” documents. FBI agents recovered these materials from Mr. Biden’s Delaware garage and home office in December 2022 and January 2023.

“These documents from the fall of 2009 have classifications markings up to the ‘Top Secret/Sensitive’ Compartmented Information level. They were found in a box in Mr. Biden’s Delaware garage that contained other materials of great personal significance to him and that he appears to have personally used and accessed.

Disclosure to Ghostwriter

“In a recorded conversation with his ghostwriter in February 2017, about a month after he left office, Mr. Biden said, while referencing his 2009 Thanksgiving memo, that he had ‘just found the classified stuff downstairs.’ At the time, he was renting a home in Virginia. He moved out of the Virginia home in 2019, consolidating his belongings in Delaware, where FBI agents later found classified documents about the Afghanistan troop surge in his garage.

“Nevertheless, we do not believe this evidence is sufficient, as jurors would likely find reasonable doubt…

“Mr. Biden could have found the classified Afghanistan documents at his Virginia home in 2017 and then forgotten about them soon after… finding classified documents at home…could have been an unremarkable and forgettable event.”

Gosh, I wish I could have used the “could have” or “forgotten” defense in some of my cases. Is the Special Counsel suggesting that Mr. Biden’s finding classified documents at home was so common that “It could have been an unremarkable and forgettable event?”

The report continues “In addition, Mr. Biden’s memory was significantly limited both during his recorded interviews with the ghostwriter in 2017 and in his interviews with our office… will likely convince some jurors that he made an innocent mistake… jurors may hesitate to place too much evidentiary weight on a single eight-word utterance to his ghostwriter…”

The “single eight-word” defense? How many words would be sufficient? Ten? Twenty?

Since the report was not that there were eight “spoken” words, but that there was an “eight-word utterance,” is the Special Counsel trying to create an “utterance” defense?   

The report continues “When Mr. Biden told his ghostwriter, he ‘just found all the classified stuff downstairs,’ he could have been referring to something other than the Afghanistan documents…”

The Special Counsel’s words “When Mr. Biden told his ghostwriter” is an admission that he violated the very reason documents are “classified”: to prevent disclosure to others who don’t have security clearances.

This “could have” been “other than Afghanistan documents” indicates that there were other classified documents, besides the Afghanistan ones, downstairs. What were they?

Ghostwriter Destroys Evidence

The ghostwriter, Mark Wontner, worked on Mr. Biden’s two memoirs 2007s “Promise to Keep” and “Promise Me, Dad’ which was published 10 years later. He also has been a fact checker for Esquire, a film director for PBS, and a researcher for Richard ben Cramer’s book “What It Takes: The Way to the White House” 1/31/2024.

The Report, in another section, stated:

“After learning of the special counsel’s appointment in this matter, Mr. Biden’s ghostwriter deleted audio recordings he had created of his discussions with Mr. Biden during the writing of Mr. Biden’s 2017 memoir. The recordings had significant evidentiary value.

“While the ghostwriter admitted that he deleted the recordings after he learned of the special counsel’s investigation, the evidence falls short of proving beyond a reasonable doubt that he intended to impede an investigation.”

The ghostwriter would not be charged with destroying recordings that had significant evidentiary value.”

Presenting Himself as Well-Meaning but Forgetful

The legal standard for competency to testify is summarized in the Federal Rules of Evidence: 

Rule 601. (a) Every person is competent to be a witness except as otherwise provided in these rules.

(b). A person is disqualified when the court determines that the person is (1) incapable of expressing himself or herself concerning the matter as to be understood, either directly or through interpretation by one who can understand him or her, or (2) incapable of understanding the duty of a witness to tell the truth.

Notice that under Rule 601, a court determines competency to testify by not considering any of the words “sympathetic, well-meaning, elderly man with a poor memory.’

In addition, the Appendix provides “One effect of the Rule as proposed would have been to abolish age, mental capacity, and other grounds recognized in some state jurisdictions as making a person incompetent as a witness.

Mr. Hur did not indicate that Mr. Biden was not competent to testify, nor did he exonerate Biden, but concluded that a jury would fail to convict because: “at trial, Mr. Biden would likely [successfully] present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.”